City of Sarasota releases first production of City Manager's personal emails that might constitute "public records"

Sarasota, FL: The City of Sarasota’s outside legal counsel has not found evidence that City Manager Tom Barwin has engaged in any incidents, pattern or practice of transacting official city business through personal email thus far in the evaluation process. The following is a comprehensive statement from Lloyd Schwed, attorney representing the City of Sarasota and Mr. Barwin:

The City of Sarasota and City Manager, Thomas Barwin, are committed to full compliance with both the letter and spirit of Florida’s “public records” statutes.

As outlined in this release, thus far in the review and evaluation process, the City’s outside counsel has not found evidence that the City Manager has engaged in any incidents, pattern or practice of transacting official city business through personal email.

Requests have been received for “public records” – as defined by Florida Statutes -- sent or received through the City Manager’s personal email, or text messages sent or received through his city-issued cell phone or his personal cell phone.

To ensure full compliance with these requests, the City Manager offered to: (1) surrender his personal laptop to the City Attorney’s office, and (2) provide the password to his personal email account to the City’s Information Technology (“IT”) Department for downloading of all personal emails for the entire period he has been employed by the City, and (3) to allow an independent, national computer forensics firm to download a forensic image of all emails and text messages on his city-issued cell phone and even his personal cell phone.

The City’s IT personnel signed on to the City Manager’s personal email account (Gmail), and downloaded all 53,326 emails on the account for the period from September 1, 2012 – when Mr. Barwin became City Manager – through June 30, 2018 (the date covered by the document requests). All 53,326 emails were downloaded to a city-owned computer and are in the possession of the City of Sarasota.

In addition, all emails or text messages downloaded from the City Manager’s city-issued cell phone and personal cell phone have been captured and preserved.

Because the Florida Statutes and court decisions recognize numerous important exemptions for private, confidential, and other sensitive materials, the City of Sarasota and its counsel are statutorily required to evaluate the 53,326 emails downloaded from the City Manager’s personal email account and the text messages and emails downloaded from the two cell phones to identify emails that qualify as “public records” and then to determine if any statutory exemptions or other provisions prohibit their production.

Florida Statute Section 119.011(12) defines “public records” as “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.”

The City’s outside counsel is working as quickly as possible to review and evaluate the 53,326 emails and to immediately produce all non-exempt documents that might qualify as “public records” pursuant to Florida law and to ensure that all such “public records” have been saved to the City’s computer server for future access. The City’s outside counsel has been instructed to liberally apply the language defining “public records” and to produce all documents that might qualify under the statutory definition.

In an effort to expedite production, the City will be releasing the “public records” on a rolling basis – rather than waiting until all 53,326 emails have been reviewed – starting with the most recent documents.

Specifically, the first production at the link below covers the seven-month period from November 22, 2017 to June 30, 2018. The City’s outside counsel evaluated 16,009 personal emails transmitted through the City Manager’s personal Gmail account during that seven-month period and identified only 390 emails that might qualify as “public records.”

Of the 390 emails that could possibly qualify as “public records,” at least 217 of those emails are already on the City’s computer server and/or have already been produced in response to the records requests.

Moreover, the vast majority of those limited emails not already on the City’s computer server relate to informational publications or newsletters from organizations such as Florida City and County Management Association, Florida Fish and Wildlife Conservation Commission, Lido Key Residents Association, or SRQ Magazine and Newsletter -- all of which are independently accessible to the public and are transmitted to thousands of readers.

Finally, a large number of the e-mails relate to the City Manager’s Weekly Briefs, which are already accessible to the public.

In summary, the review and evaluation by the City’s outside counsel of this first batch of 16,009 personal emails found that:

More than 97.5 percent of the emails were strictly personal in nature and do not qualify as “public records”;

Of the 390 emails that might be construed as “public records,” 217 emails, or nearly 56 percent, are already on the City’s computer server and/or were previously produced in response to the records requests;

An initial review of the 173 personal emails that might be construed as “public records,” but which may not have been saved on the City’s computer server, indicates those emails relate primarily to informational publications or newsletters from various sources;

The City’s outside counsel’s evaluation of the first batch of 16,009 personal emails did not locate or identify personal emails – which are not already on the City’s computer server – in which the City Manager is transacting official business in any substantive manner.

Accordingly, thus far in the evaluation process, the City’s outside counsel has not found evidence that the City Manager has engaged in any incidents, pattern or practice of transacting official city business through personal email.